Waithaka v Golden Africa Kenya Limited (Cause 4 of 2023) [2024] KEELRC 2835 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the termination was unfair
- 2.Whether the claimant is entitled to money as claimed
Key legal issues
#Whether the summary dismissal was procedurally fair under section 41 of the Employment Act
The dismissal was unfair for want of notice of allegations and a hearing; the claimant cooperated and did not disappear, and no disciplinary process was ever initiated
The claimant received the suspension letters and reported as scheduled, yet was never invited to a disciplinary hearing or given notice of allegations. The respondent's account that he disappeared was contradicted by its own witness, who confirmed he received the letters and that no disciplinary proceedings took place. Nothing prevented the respondent from initiating the process, so the dismissal failed the fair-procedure requirement of section 41.
Whether the grounds of gross misconduct under section 44(4)(f) and (g) were valid per section 43
Neither ground was valid as at 04.07.2022: the claimant had not been arrested and unavailable for 14 days, and there was no criminal charge at the time of dismissal to found reasonable suspicion
The section 44(4)(f) ground (arrest for a cognizable offence without release for 14 days) could not apply because the claimant was only arrested and charged on 08.11.2022, after dismissal. The section 44(4)(g) ground of reasonable suspicion of a criminal offence had not accrued by 04.07.2022, since no charge existed and the claimant had only been assured of ongoing investigations. The reasons were therefore neither valid nor fair.
What remedies are due
Twelve months' maximum compensation under section 49, one month's pay in lieu of notice, and terminal dues per the respondent's computation, less Sacco loan settlement
The claimant had a clean and exemplary record confirmed by a recognition letter. Aggravating factors were the sudden summary dismissal without notice and hearing after promising a post-investigation review, and unpaid suspension including withholding of 25 days worked in May 2022. These justified the maximum 12-month compensation. Terminal dues were taken from the respondent's statement of final dues, with Sacco loan liability to be mutually verified and settled.
Legal principles established
#- Summary dismissal without notice of particularised allegations and a hearing offends section 41 of the Employment Act and is unfair
- Grounds for summary dismissal must be valid as at the date of termination per section 43 of the Employment Act
Court orders
#- 1.The declaration that the summary dismissal was unfair and unlawful
- 2.The respondent to pay the claimant a sum of Kshs. 1,586,750.00 (less PAYE) by 15.12.2024 failing interest at court rates from the date of judgment until full payment
- 3.The respondent to deliver the claimant's certificate of service by 15.12.2024
- 4.The respondent to pay the claimant's costs of the suit
- 5.The Deputy Registrar to cause return of the court file to the Machakos Sub-registry forthwith
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Relief refused
#Claim as pleaded for terminal dues on salary for May, June to 04.07.2022; prorata leave; service pay in the claimant's own computation
The Court adopted the respondent's computation of final dues instead of the claimant's figures, and directed deduction of amounts settling the claimant's Sacco loan liability
Costs
The respondent to pay the claimant's costs of the suit
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the Court returns that the summary dismissal was unfair both in procedure and in merits or substance.
The claimant did not disappear as alleged for the respondent. Accordingly, the summary dismissal was unfair for want of fair procedure.
judgment is hereby entered for the claimant against the respondent for: 1. The declaration that the summary dismissal was unfair and unlawful.
The respondent to pay the claimant a sum of Kshs. 1, 586,750.00 (less PAYE) by 15.12.2024 failing interest to be payable thereon at court rates from the date of this judgment until full payment.
The respondent to pay the claimant's costs of the suit.
Issues in the judgment
#The memorandum of claim figures as pleaded (Kshs. 258,000 for three months' unpaid salary) appear inconsistent with monthly gross of Kshs. 86,000 used elsewhere, but the judgment itself does not reconcile this
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waithaka v Golden Africa Kenya Limited (Cause 4 of 2023) [2024] KEELRC 2835 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2835/eng@2024-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.